Case 5:14-cr-00244 Document 480 Filed 11/06/15 Page 1 of 7 PageID #: 8611

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
___________________________________
)
UNITED STATES OF AMERICA
)
)
v.
)
)
Criminal No. 5:14-cr-00244
DONALD L. BLANKENSHIP
)
___________________________________ )
MOTION TO RECONSIDER AS TO DEFENSE EXHIBITS 410 & 410A
The defense hereby moves for the Court to reconsider its decision to exclude from
evidence Defense Exhibit 410, containing lengthy video from the hazard elimination kick-off
meeting, which already has been authenticated by Mr. Blanchard. In the alternative, the defense
asks the Court to reconsider its decision to exclude each and every one of the 30 individual
excerpts from the video that the defense subsequently submitted to the Court as Defense Exhibit
410A.1
First, in light of Mr. Ross’s testimony, video of the hazard elimination meeting is even
more probative and necessary to the defense. Now that Bill Ross has testified – and documents
have been admitted opining – that a new approach to safety compliance was necessary, video of
the meeting that initiated such a new approach must be admitted. Likewise, now that Bill Ross
has testified – and documents have been admitted indicating – that unnamed persons took the
approach of “run, run, run, until you get caught,” video of the meeting showing the sincerity and
intensity with which Massey executive management rejected that approach and instructed its
members to do the exact opposite must be admitted.

1

A transcript of the entire meeting is attached as Exhibit A.

And now that the government has

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attempted to show that Mr. Ross’s opinions were secreted away, video of the meeting shows that
they were not.
Moreover, on two separate occasions in his direct testimony (including during testimony
about Government Exhibit 191), Mr. Ross halted his testimony, became visibly emotional, and
wiped tears from eyes, as the courtroom remained silent with all attention fixed on him. In
response, family members of the deceased miners became emotional as well, in full sight of the
jury. The Court having denied the defense request for a mistrial based on this, which the defense
hereby renews, the video is necessary evidence.
Second, as to Defense Exhibit 410A in particular, the Court’s ruling does not indicate
whether it considered each of the separately-numbered excerpts contained in that exhibit
individually. Each excerpt was submitted as its own numbered file so that the Court could rule
on each individually. And to assist in this determination, each excerpt features only one speaker.
For instance, many feature only Mr. Adkins.
So for example, if the Court deemed inadmissible an individual excerpt in which a
speaker remarks of the state of mind of a co-speaker, then the Court could exclude that excerpt,2
while still permitting one or more of the remaining excerpts.
Third, the Court’s ruling indicated that it was denying admission of the video excerpts
because they contain opinions. The defense respectfully submits, however, that the excerpts
contain directives and instructions rather than opinions. Regardless, statements of opinion are
not hearsay. WEINSTEIN’S FEDERAL EVIDENCE § 801.11[5][c] (“Words or conduct offered as
circumstantial evidence of an actor’s beliefs or thoughts do not constitute statements under the
2

The defense submits that such an excerpt is indeed admissible, as it still provides evidence of the state of
mind of the speaker and the hundreds of people in the audience, including the more than ten
representatives of UBB in attendance at the meeting. See Ex. B. Furthermore, and especially given that
the co-speaker was present and gave comparable remarks, it is probative of that individual’s state of mind
as well. And regardless, the excerpt remains a directive and is independently admissible on that ground.

2

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rule against hearsay. Thus, the rule against hearsay does not bar evidence introduced to show a
party’s viewpoint or attitudes . . .”).3
In this regard, even if the video contained assertions rather than directives, it still would
not constitute hearsay, as the defense is not offering them for their truth, but rather for state of
mind – including the state of mind of the speakers (who include at least one alleged coconspirator and others who reported to Mr. Blankenship), of the audience (which includes
alleged co-conspirators at UBB and several other UBB managers), and of Mr. Blankenship
himself (who the evidence shows inspired and authorized this meeting). This is so whether or
not the excerpts contains opinions.
Indeed, over defense objection, the Court admitted documents in Mr. Ross’s testimony,
such as Government Exhibit 191, on the ground that they showed the state of mind of members
of the Hazard Elimination Committee. Likewise, the Court has admitted evidence – including
testimony about statements made in this very meeting – on the ground that it bears on the state of
mind of alleged co-conspirators. These same bases for admissibility apply with equal force to
the video.
Fourth, the Court ruled that the excerpts in Defense Exhibit 410A are inadmissible
because they do not faithfully represent the full meeting. But the Court previously held that the
longer video of the meeting submitted as Defense Exhibit 410 was inadmissible, over defense
objection. Thus, the Court precluded the defense from introducing the video that contains the
context that the Court now has ruled is necessary. The solution is to revisit this decision and
admit the longer version of the video in Defense Exhibit 410.

3

The Court admitted the Ross Memo (Gov’t Ex. 96) even though Mr. Ross repeatedly indicated that it
reflected his opinions.

3

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That said, the sole purpose – and full context – of the meeting was to instruct mine
management to eliminate hazards and violations and to slow or cease production as necessary to
do so. The excerpts submitted in Defense Exhibit 410A faithfully capture this message, which
again was the one and only message delivered in the meeting.
Nor do any additional portions of the meeting change the meaning of the excerpts.
Instead, they only show that the meeting was a lengthy and serious meeting containing repeated
instructions by Massey upper management that the mines needed to reduce violations, and they
only reveal the intensity and sincerity of this message.
Fifth, the Court’s ruling indeed causes extreme prejudice to Mr. Blankenship. It is
beyond dispute that the video is the best evidence of what occurred in this meeting, what
directives were given, and the sincerity and intensity with which they were delivered. This
evidence remains necessary to counteract the government’s repeated attempts to undercut the
significance of the meeting and to suggest little was done by the company in response to
violations.
Even more so in light of the Ross testimony and the emotion Mr. Ross exhibited in giving
it, the unfair and extreme prejudice to Mr. Blankenship that would result from precluding the
defense from showing the best evidence of the meeting – and the sincerity, passion, and
humanity with which the message in that meeting was delivered – is self-evident.
Testimony about the meeting is no replacement for the actual video.
Finally, the defense seeks reconsideration based on fundamental fairness and due process.
In a case asserting a conspiracy to willfully violate safety regulations, a video recording of a
company-wide meeting containing express instructions by Massey executive management to
UBB and other Massey mines to eliminate hazards, reduce violations, and cease production in

4

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favor of safety-law compliance is so central and so exculpatory that it is constitutionally
required. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“where constitutional rights
directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice.”). This is especially so in light of the Ross
testimony and documents. And it is especially so in light of audio-recordings admitted at the
government’s request that, if probative at all, are nowhere near as probative as the video to the
real issues in this case and that were admitted over defense objection, notwithstanding the
extreme and unfair prejudice to Mr. Blankenship. In short, especially in light of the Court’s
admission of particular testimony and documents offered by the government, Defense Exhibit
410 is so central to the defense that continued preclusion of it will violate Mr. Blankenship’s
Fifth and Sixth Amendment rights to present a defense and present exculpatory evidence on his
own behalf.
WHEREFORE, the defense respectfully requests that the Court admit Defense Exhibit
410 or, in the alternative, the individual excerpts contained in Defense Exhibit 410A.
Dated: November 6, 2015

Respectfully submitted,
/s/ William W. Taylor, III
William W. Taylor, III
Blair G. Brown
Eric R. Delinsky
R. Miles Clark
Steven N. Herman
ZUCKERMAN SPAEDER LLP
1800 M Street, NW, Suite 1000
Washington, DC 20036
202-778-1800 (phone) / 202-822-8106 (fax)
wtaylor@zuckerman.com
bbrown@zuckerman.com
edelinsky@zuckerman.com
mclark@zuckerman.com
sherman@zuckerman.com

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/s/ James A. Walls
James A. Walls (WVSB #5175)
SPILMAN THOMAS & BATTLE, PLLC
48 Donley Street, Suite 800
Morgantown, WV 26501
304-291-7947 (phone) / 304-291-7979 (fax)
jwalls@spilmanlaw.com
/s/ Alexander Macia
Alexander Macia
SPILMAN THOMAS & BATTLE, PLLC
P.O. Box 273
Charleston, WV 25321-0273
304-340-3800 (phone) / 304-340-3801 (fax)
amacia@spilmanlaw.com
Counsel for Donald L. Blankenship

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 Case 5:14-cr-00244 Document 480 Filed 11/06/15 Page 7 of 7 PageID #: 8617

CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been electronically filed and service has been made
by virtue of such electronic filing this 6th day of November, 2015 on:
R. Booth Goodwin, II
Steven R. Ruby
Gabriele Wohl
U.S. Attorney’s Office
P.O. Box 1713
Charleston, WV 25326-1713
R. Gregory McVey
U.S. Attorney’s Office
845 Fifth Avenue, Room 209
Huntington, WV 25701

/s/ Eric R. Delinsky
Eric R. Delinsky